Interim Decision #2063 

MATTER OF Li 

In Deportation Proceedings 

A-18431665 

Decided by Board November 19, 1970 

Motion to reopen deportation proceedings is not granted merely because a 

third preference visa petition on behalf of respondent was approved subsequent to the entry of a final order of deportation. 

ON BEHALF OF RESPONDENT: David C. Marcus, Esquire 

215 West Fifth Street 

Los Angeles, California 90013 

(Brief filed) 

Respondent moves to reopen deportation proceedings. The 

motion will be denied. 

The record before us reflects the following uncontroverted 

facts: On September 4, 1969, this Board entered an order dismissing respondent's appeal from an order of a special inquiry officer 

finding her deportable as an overstayed visitor and granting her 

a period of ten days within which to depart voluntarily from the 

United States. In our order, in accordance with Matter of Villegas-Aguirre, Interim Decision No. 1940 (BIA, 1969) , we authorized voluntary departure within ten days from the date of our decision. No further extension of the voluntary departure time was 

granted and on respondent's failure to depart the alternate order 

of deportation became effective. 

Thereafter, on January 15, 1970, the District Director approved a third preference visa petition filed in respondent's behalf. Called in to surrender for deportation, respondent on March 

16, 1970 filed a petition under section 106(a) of the Immigration 

and Nationality Act in the United States Court of Appeals for 

the Ninth Circuit, seeking review of our order of. September 4, 

1969. The petition was dismissed as untimely, rehearing was denied, and on October 26, 1970 respondent's certiorari petition was 

denied by the Supreme Court, Li v. Rosenberg, No. 5523, October 

Term, 1970. 

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The theory of the motion now before us is that the District 

Director's approval of the respondent's visa petition somehow 

nullified the outstanding order for her deportation, so that she is 

permitted to remain here indefinitely until such time as her turn 

is reached on the quota list,' after which she will be eligible to 

apply for adjustment of her status to that of a permanent resident under section 245 of the Act without having to leave the 

United States. We reject that notion. 

The adjudication of third preference visa petitions and of deportability are entirely separate functions which are committed to 

entirely distinct tribunals. Such visa petitions are adjudicated by 

District Directors and are reviewable on appeal to the Service's 

Regional Commissioners, 8 CFR 103.1 (e) (2). Deportability and 

applications for voluntary departure are adjudicated by special inquiry officers in proceedings under section 242 (b) of the Act, and 

such adjudications are reviewable on appeal to this Board, 8 CFR 

3.1 (b) (2). 

The motion to reopen rests on the erroneous premise that approval of the visa petition "entitled [respondent] to adjust status 

in the United States to that of a lawful permanent resident" 

(Motion to reopen, p. 5). Approval of the visa petition had no 

such effect. Visa petition approval merely paves the way for later 

eligibility to permanent residence at such time as a quota number 

becomes available. If the beneficiary of the approved visa petition 

is permitted to remain in the United States until his turn is 

reached on the waiting list, visa availability is merely one of the 

eligibility requirements of section 245 adjustment that he is 

thereby enabled to meet. There are other requirements, and even 

if he meets them all, adjustment of status to permanent residence 

does not automatically follow; administrative discretion must still 

be favorably exercised. If the beneficiary is outside the United 

States when the quota number becomes available, he can then 

apply to a United States consul for the issuance of an immigrant 

visa upon which to seek admission for permanent residence. In either event, approval of a visa petition is merely a starting point 

on the road to permanent residence. In itself, it confers no vested 

rights to permanent residence. 

The court cases cited by respondent all dealt with the question 

of the courts' jurisdiction to review various types of administrative determinations under section 106(a) of the Act. None purThe third preference portion of the Philippine quota is now available 

only to aliens with a priority date of September 15, 1968, according to the 

latest State Department Visa Office Bulletin. 

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ports to hold that approval of a visa petition has the effect of nullifying an outstanding deportation order. Although it may be 

more convenient for an alien to pursue such collateral remedies 

while still in the United States, there is nothing in the law which 

requires that deportation proceedings be withheld or that execution of a deportation order be stayed during the pendency of such 

collateral proceedings. See Siu Fung Luk v. Rosenberg, 909 F.2d 

555, 559 (9 Cir., 1969), cert. denied 396 U.S. 801; Manantan v. 

INS, 425 F.2d 693 (7 Cir., 1970); Wan Cheng Shek v. Esperdy, 

304 F. Supp. 1086 (S.D. N.Y., 1969). 

While it may be true that deportation of the respondent will 

render her ineligible to receive a visa under section 212(a) (17) 

of the Act unless she first receives permission to reapply, that is 

a condition which confronts all deportees. The mere fact that she 

has previously spurned the opportunity to depart voluntarily 

without the entry of a deportation order and that she has unsuccessfully litigated our prior order does not require that the privilege of voluntary departure must once more be made available to 

her. See Fan Wan Keung v. INS, 434 F.2d 301 (2 Cir., October 

19, 1970). 

ORDER: The motion is denied. 

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